HSBC GoldCard sold debt to Robinson Way

[Archangel9]

Ok, I found the relevant section in another thread.

 

Now, my situation is that the last letter RWC sent me included the NOA's and this was recorded delivery although they originally did not send the alleged NOA's recorded in any way.

 

How does this affect me?

 

Thanks,

A.

[Archangel9]

I got another letter from RWC stating that if I don't contact them with a formal payment plan, they'll send people round.

[Belaflat]

Send people round..? OH my, that should really make you scared, or at least they hope it will.

In reality what they are saying is "we can't do much at this stage so please give us some money"

I have yet to have a doorstep visit from anyone despite numerous agents threatening me with the same.

 

Its a hollow threat which even if carried out should pose no problem to you, just kick them off your property and call the police if they refuse.

You will be in the right.

[creditcardmug]

You should get both, one from o/c, and one from DCA.

Post some details of your problem, then people on here may be able to help.

[Archangel9]

You should get both, one from o/c, and one from DCA.

Post some details of your problem, then people on here may be able to help.

 

Well, I have posted this in different threads that I linked to, but RWC did originally send "NOA's" i.e. letters from other companies in RWC envelopes, these were not recorded delivery and I only got a letter from Sainsburys stating that they were going to sell the account, not a letter stating that they had and who to. RWC did send me a letter the other day (also posted in another thread) which was recorded and contained HSBC CCA (not previously provided), Sainsburys CCA (previously provided).

 

Thanks,

A.

[Archangel9]

Send people round..? OH my, that should really make you scared, or at least they hope it will.

In reality what they are saying is "we can't do much at this stage so please give us some money"

I have yet to have a doorstep visit from anyone despite numerous agents threatening me with the same.

 

Its a hollow threat which even if carried out should pose no problem to you, just kick them off your property and call the police if they refuse.

You will be in the right.

 

This is what I thought, but I am in a confused place at the moment with regards to how to proceed (I've started another thread about NOA's and the legality of them).

 

I've SAR'd Sainsburys and got nothing back, 2 months almost so far and still waiting. Does this affect the enforceable nature of this with the DCA?

 

AFAIK the fact that I'm fairly sure that the amount has charges added and the fact that RWC can't even seem to provide a letter with a consistent amount on it ;-) is also strange.

 

I'm going to report them to the OFT with all documentation thus far on both accounts highlighting the regulations they have broken.

 

I need to send yet another letter to RWC covering both accounts, but am unsure as to what to put in them. I think that the HSBC one is still unenforceable, even though they eventually provided what looks like a proper CCA, as they didn't provide it within the require time they have to go to court to get this enforced, right?

 

The Sainsbury's one, I'm still not sure how to actually go about calculating this to see if the prescribed items are on this and are correct. It seems that they're not as other's have said, but again, unsure.

 

Any help is appreciated,

A.

[creditcardmug]

Well i would say that until you get a letter from the original creditor stating that they have assigned it to someone else, i wouldn't pay the DCA anything.

They have no legal right to collect and/or enforce.

[ScarletPimpernel]

RW sent me an NOA which purported to be from HSBC. In my thread you will see that I took this up with them, and RW's feeble responses.

 

I suspect, however, that if they can produce agreements, and these are valid, that arguing about the delivery of NOA is unlikely to be very rewarding.

[ScarletPimpernel]

Who do you mean? Sainsburys or RWC? If Sainsburys don't respond at all, does this have any legal implications?

 

Thanks,

A.

 

 

If Sainsbury's fail to respond to a SAR then you can go to Court to get an order forcing them to comply, as well as reporting them to ICO (for what it's worth!). Clearly, should they or their DCA start any litigation then their failure to comply will form part of your defence.

[ScarletPimpernel]

If they produce a valid CCA they can enforce, though of course you have to question why it took so long. How old is the HSBC agreement - the older ones are rarely compliant.

[Archangel9]

I think I had the HSBC card from about 4 years ago, had it about a year before things went t*ts up.

[Archangel9]

Well, I was interested in the part of the LoP act that states that it has to be sent recorded, now they didn't do that the first time around and I was also wondering whether sending it a second time around recorded pertains to the act?

[Archangel9]

Think I need to get all my HSBC statements in order and send em a letter for both and also send something to the FOS.

[nicklea]

Thanks. I will put the figures into my computer and will post the results tomorrow.

 

I will be assuming that the repayments were due on the monthly anniversary of the loan and that you payed nothing until the 3rd anniversary. Is this correct?

 

1st anniversary No paymrnt required

 

2nd anniversary Payment requred 0.00

 

3rd annversary First of 84 regular payments required

 

This is wrong it's actually 3 months at 0 followed by 84 at the regular amount. The apr does work out properly.

 

Unfortunately, I do happen to know about Sainsburys loans myself and I do know that they're enforceable:mad:

 

I've S.A.R - (Subject Access Request)'d Sainsburys and got nothing back, 2 months almost so far and still waiting. Does this affect the enforceable nature of this with the DCA?

 

AFAIK the fact that I'm fairly sure that the amount has charges added and the fact that RWC can't even seem to provide a letter with a consistent amount on it is also strange.

 

With an sar, don't forget that they do have 40 days which is one and a half months. It doesn't affect the enforceability of the agreement.

 

It is important to get hold of the sar because charges will have been added. I know that I had about £100 in charges added to my account.

 

If the amount quoted by rwc is increasing steadily (but slowly, approx £3 or £4 per month) then that is ok as one of the terms with sainsburys is that they can charge interest on late/non payments at the same rate of interest. However you won't know the actual amount it was when it was sold to rwc (so you can see what sort of charges they've tried to apply). These charges are in the t&cs so they can charge extra fees for dcas and solicitors etc, but those fees cannot be extortionate - otherwise they would be penalties and so not enforceable.

 

To be honest, there's not a lot you can do sainsburys loan agreements as I know to my cost (the credit card agreements, however, are a totally different kettle of fish and you can really have fun with those).

 

I think that the best you can do is wait to see what you get back from sainsburys on the sar.

 

If it does go to court then there are only a few things you can do, but how successful they will be will depend on how strongly you make the case and how the judge is feeling on the day.

 

1) Invalid default notice due to stating the wrong amount. They have to issue a valid default notice before they can terminate the account or enforce early payment of any amounts. If you are successful with this defence then they (RWC) are quite within their rights to issue an accurate default notice and then start the proceedings again.

 

2) Set-off of charges added to the account. This will be from both sianbsurys and rwc (don't bother doing an sar to rwc at the moment, wait until/if they start legal action and request it under cpr 18).

 

3) They have a term enabling them to charge interest after judgement (but it is worded very oddly, so there might be some way round it) so the case of Director General of Fair Trading V First National Bank [2001] UKHL 52 is applicable and the Consumer Credit (Rebate on Early Settlement) Regulations 1983 (SI 1983/1562) as amended do apply. What this means is that when they take you to court they can only claim a reduced amount (effectively the same as the early settlement figure you would get if you phoned up a creditor and said that you wanted to settle the loan early) so you need to make sure that they're only claiming that smaller amount as they can also claim interest.

4) The notice of assignment (which, as you mentioned in the other thread, has now been sent by recorded delivery) must be given under the hand of the assignor. In other words, it must come from Sainsburys and be on their headed paper. It can't just come from rwc. There must be a letter from sainsburys saying that this debt has been sold or assigned to rwc otherwise it isn't effective.

 

5) Time order. Judges can make a time order under the cca and can change the interest rate to zero. I posted about it here:-

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/120043-womble-72-northern-rock-13.html?post1323420

 

and this is the relevan bit (it's a bit long):-

 

when I was looking at the First National Bank case I did find some things that I think could have a wider relevance to more people. It's sections 129 and 136 of the CCA. These say that if a time order is made then the Court may amend any details of the agreement that it sees fit.

 

Reference was made in the First National Bank cases to Southern and District Finance plc v Barnes [1996] 1 FCR 679 and two related appeals. My apologies if these are well known to people but I hadn't come across this before and never really looked at these sections of the CCA.

 

 

 

In the original First National Bank case in the High Court [1999] EWHC Ch 206 the Judge said the following at p51:-

 

...It seems to me that the complaints of borrowers which have been the cause of the bringing of these proceedings by the Director might well be met if the judgment of the Court of Appeal in Southern District Finance Plc v Barnes and in particular the way in which one of the County Court Judges dealt with one of the cases under appeal and the Court of Appeal's reactions to his method, were more widely known to the professions and other advisory bodies.

 

and at p22:-

 

The Director's complaint as to the effect of clause 8 [this is the clause enabling them to claim interest after judgement] of the Bank's form of agreement only arises where the Court has extended the time for repayment of the amount lent by making an instalment order. It is plain from the passages from the judgment of Lord Justice Leggatt in the Barnes case which I have set out above, and in particular from his approval of the order made under one of the judgments being considered, that any County Court being called upon to enforce one of the Bank's loan agreements containing clause 8 would have power, if it thought just to do so, to negate any harsh effect of that clause by reducing the rate of interest payable under it, if necessary, to nil.

 

The order was given in p19:-

 

1. In applying these principles to one of the judgments appealed from Lord Justice Leggatt said this at page 71:-"When the Judge re-scheduled the instalments under the agreement he did so over a fresh period of fifteen years. Since nearly three had passed since the agreement was made, this had the effect of extending the total of the agreement to nearly eighteen years. The Judge reduced the rate of interest to nil, since otherwise throughout the extended period of the loan interest would have been payable on the arrears at the exorbitant rate prescribed, and that would have defeated the purpose of giving time. In effect as a sanction for non payment of instalments a suspended possession order was substituted for a penal rate of interest. The Court gave the plaintiff leave to appeal against his order, though the Judge's methods were robust and his reasoning economical, his instincts were sound and his order just. I would dismiss the appeal."
    
    
   
   
   

This was picked up by Lord Bingham of Cornhill in the House of Lords case where he said:-

 

27] In conclusion, I would add a footnote on ss 129 and 136 of the 1974 Act. In the course of argument the House was referred to the decision of the Court of Appeal in Southern and District Finance plc v Barnes [1996] 1 FCR 679 and two related appeals. The effect and interaction of ss 129 and 136 were there considered.

[28] Of s 129 the court said (at 686):

‘When a time order is made, it should normally be made for a stipulated period on account of temporary financial difficulty. If, despite the giving of time, the debtor is unlikely to be able to resume repayment of the total indebtedness by at least the amount of the contractual instalments, no time order should be made. In such circumstances it will be more equitable to allow the regulated agreement to be enforced.’

I would in general agree that time orders extending over very long periods of time are usually better avoided. But I note that the court dismissed an appeal against a judge who had rescheduled payments over a period of 15 years (‘Though the Judge’s methods were robust and his reasoning economical, his instincts were sound and his order just’ ([1996] 1 FCR 679 at 689)), and the broad language of s 129 should be so construed as to permit the county court to make such order as seems to it just in all the circumstances.

[29] Of s 136 the court said (at 686):

‘The court may include in a time order any amendment of the agreement, which it considers just to both parties, and which is a consequence of the term of the order.’

In the case already referred to the judge had ordered that no additional interest should be payable beyond that which had already accrued, and the Court of Appeal upheld his decision. It was right to do so: provided the amendment is a consequence of a term of the time order, the court should be ready to include in a time order any provision amending the agreement which it considers just to both parties.

 

 

So, it looks like there is definitely some scope, if you are faced with an enforceable agreement to mention in your defence about time orders and s136. But I think that this is the sort of thing that needs to be drafted by one of the 'proper' legal people that we've got here

 

Hope this helps

 

nicklea

[nicklea]

Just checked - are you sure that they've sent you a notice oaf assignment for the sainsburys agreement as you haven't posted it anywhere - only the hsbc notice?

[nicklea]

As scarletpimpernel says (if this is for a credit card) then without an enforceable agreement they haven't got a leg to stand on. If you have sent a s78 request and they haven't replied then they won't get anywhere as long as you defend it.

 

With the letters they've sent you Imade a few comments:-

 

Letter purportedly from HSBC on 23/7/07 – this mentions that debt was assigned on 5/7/07. It would be good to get sight of the actual deed of assignment to check that (you can request this if it goes to court). If the date is wrong then the notice is not effective.

Letter of 25/7/07 from rwc saying notice of assignment is rubbish – it has to come from HSBC

26/9/07 this could be clutching at straws but they clearly admitted that the fake letter came from them and NOT hsbc so it might be arguable that the assignment wasn’t under hand of hsbc

Letter of 10/10/07. where to start – this is just so much rubbish. S189 says:-

“creditor ” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law,

So they have to have both the rights and duties

Also s136 Law of Property only deals with absolute assignment. So, if they come to court in their own name then you can quote this letter saying that if it is not an absolute assignment then they must include the oc as co-claimant otherwise they have no right of action.

 

[nicklea]

hi archangel,

 

Did they actually send you the sainsburys of NOA as you haven't posted it anywhere?

 

Also, which NOA did thye send by recorded delivery - the one purportedly from hsbc or the one from themselves. If it was the one from themselves then that's meaningless and is still not effective

[Archangel9]

Just checked - are you sure that they've sent you a notice oaf assignment for the sainsburys agreement as you haven't posted it anywhere - only the hsbc notice?

 

Yeah, I've just checked, they didn't send it to me originally. They did send a "copy" in that recorded delivery dated 20/11/07.

 

Here's the letter that Sainsburys sent:

 

 

and here's the so called NoA:

 

 

I also sent them another letter, 1 for each:

 

ACCOUNT IN DISPUTE

I do not acknowledge any debt to your company or your clients.

Further to your letter dated 28/04/08, you state that I have not outlined why I believe this account is unenforceable, I think you'll find that I put that in a letter dated 27/03/08 which yourselves had signed for on the 28/03/08. I will also add that I believe the account has unfair charges added to the amount

 

 

You go on to state that you contacted Sainsburys and that they have no reference of any dispute raised with them. I sent Sainsburys a Subject Access Request on the 27/03/08 which they signed for on the 31/03/08, thus far they have failed to respond to this request. I can only urge you to return the account back to Sainsburys.

 

 

You also state that you have enclosed a copy of the Deeds of Assignment, this is clearly incorrect as you have provided copies of the so called Notice of Assignment, again I have heard nothing from Sainsburys about this assignment.

 

 

I would also like to draw your attention to your letter dated 16/05/08 in which you state that a collector will visit. Whilst this account is in dispute, WHICH IT IS, according to the OFT guidelines in section 2.12f you cannot threaten this as this is an example of an unfair practice. Any attempt to gain entry to this property will be considered an attempt burglary dwelling which will result in the relevant authorities being contacted and as such, I will seek prosecution of said collector and your company.

 

 

 

 

I look forward to hearing from you in writing.

Thanks,

A.

[Archangel9]

And, I've just realised that Sainsburys, HBOS and RWC are the same company!

[nicklea]

I thought that your other debt was with hsbc not hbos?

 

That letter from sainsburys isn't a notice of assignment. They say that they are "considering" selling and that they will give you "firm details nearer the time"

 

This letter just says that they are going to assign the debt at some indeterminate time in the future it is not notice that they have assigned it.

[Archangel9]

This is wrong it's actually 3 months at 0 followed by 84 at the regular amount. The apr does work out properly.

 

Unfortunately, I do happen to know about Sainsburys loans myself and I do know that they're enforceable:mad:

 

 

With an S.A.R - (Subject Access Request), don't forget that they do have 40 days which is one and a half months. It doesn't affect the enforceability of the agreement.

 

Yup, by my calculations, they still have another 4 (I think) days left to comply.

 

It is important to get hold of the S.A.R - (Subject Access Request) because charges will have been added. I know that I had about £100 in charges added to my account.

 

If the amount quoted by rwc is increasing steadily (but slowly, approx £3 or £4 per month) then that is ok as one of the terms with sainsburys is that they can charge interest on late/non payments at the same rate of interest. However you won't know the actual amount it was when it was sold to rwc (so you can see what sort of charges they've tried to apply). These charges are in the t&cs so they can charge extra fees for dcas and solicitors etc, but those fees cannot be extortionate - otherwise they would be penalties and so not enforceable.

 

To be honest, there's not a lot you can do sainsburys loan agreements as I know to my cost (the credit card agreements, however, are a totally different kettle of fish and you can really have fun with those).

 

Have you been to court and lost against them?

 

I think that the best you can do is wait to see what you get back from sainsburys on the S.A.R - (Subject Access Request).

 

I intend to. But what happens if they don't send one?

 

If it does go to court then there are only a few things you can do, but how successful they will be will depend on how strongly you make the case and how the judge is feeling on the day.

 

1) Invalid default notice due to stating the wrong amount. They have to issue a valid default notice before they can terminate the account or enforce early payment of any amounts. If you are successful with this defence then they (RWC) are quite within their rights to issue an accurate default notice and then start the proceedings again.

 

I'm not sure what you mean here.

 

2) Set-off of charges added to the account. This will be from both sianbsurys and rwc (don't bother doing an S.A.R - (Subject Access Request) to rwc at the moment, wait until/if they start legal action and request it under cpr 18).

 

Do you mean, get them to take off the charges?

 

3) They have a term enabling them to charge interest after judgement (but it is worded very oddly, so there might be some way round it) so the case of Director General of Fair Trading V First National Bank [2001] UKHL 52 is applicable and the Consumer Credit (Rebate on Early Settlement) Regulations 1983 (SI 1983/1562) as amended do apply. What this means is that when they take you to court they can only claim a reduced amount (effectively the same as the early settlement figure you would get if you phoned up a creditor and said that you wanted to settle the loan early) so you need to make sure that they're only claiming that smaller amount as they can also claim interest.

4) The notice of assignment (which, as you mentioned in the other thread, has now been sent by recorded delivery) must be given under the hand of the assignor. In other words, it must come from Sainsburys and be on their headed paper. It can't just come from rwc. There must be a letter from sainsburys saying that this debt has been sold or assigned to rwc otherwise it isn't effective.

 

Which it isn't, so the NoA/account is unenforceable at the moment?

 

5) Time order. Judges can make a time order under the cca and can change the interest rate to zero. I posted about it here:-

 

>> SNIP

 

Hope this helps

 

nicklea

 

There's a lot of legalese in there but thanks.

 

A.

[Archangel9]

I thought that your other debt was with hsbc not hbos?

 

There are 2, both being handled by RWC, 1 is for HSBC and the other is Sainsburys.

 

That letter from sainsburys isn't a notice of assignment. They say that they are "considering" selling and that they will give you "firm details nearer the time"

 

This letter just says that they are going to assign the debt at some indeterminate time in the future it is not notice that they have assigned it.

 

Exactly! That was the last letter I got from Sainsburys, everything else has been from RWC.

 

A.

[Archangel9]

As scarletpimpernel says (if this is for a credit card) then without an enforceable agreement they haven't got a leg to stand on. If you have sent a s78 request and they haven't replied then they won't get anywhere as long as you defend it.

 

Well, they have sent what looks like a CCA, but this was in the recorded delivery letter which was the conclusion of the harassment claim I made, they cover both the Sainsburys and HSBC accounts in 1 letter.

 

With the letters they've sent you Imade a few comments:-

 

Letter purportedly from HSBC on 23/7/07 – this mentions that debt was assigned on 5/7/07. It would be good to get sight of the actual deed of assignment to check that (you can request this if it goes to court). If the date is wrong then the notice is not effective.

 

So, I should write to them asking for a copy of the DoA?

 

Letter of 25/7/07 from rwc saying notice of assignment is rubbish – it has to come from HSBC

 

Good, that's what I thought.

 

26/9/07 this could be clutching at straws but they clearly admitted that the fake letter came from them and NOT hsbc so it might be arguable that the assignment wasn’t under hand of hsbc

 

Yup, I read it like that because in the letter before them I accused them trying to defraud me and quoted the 2006 fraud act (or whatever year it was ).

 

Letter of 10/10/07. where to start – this is just so much rubbish. S189 says:-

 

“creditor ” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law,

 

So they have to have both the rights and duties

 

Also s136 Law of Property only deals with absolute assignment. So, if they come to court in their own name then you can quote this letter saying that if it is not an absolute assignment then they must include the oc as co-claimant otherwise they have no right of action.

 

oc = original creditor?

 

In the Sainsburys case, they also state the same in that they have acquired the rights but not the duties, how is this different?

 

Thanks,

A.

[Archangel9]

No, but I've posted it now in the other thread.

 

Both NoA's are from RWC that they sent, they didn't try to send the fake one again

[Archangel9]

Also, here's the letter I sent them today:

 

ACCOUNT IN DISPUTE

I do not acknowledge any debt to your company or your clients.

 

 

Further to your letter dated 28/04/08, you state there has been no dispute raised concerning this account, I draw your attention to my letter dated 29/01/08 which you signed for on the 30/01/08. I would like to reiterate that this account is in dispute.

 

 

You have since sent me a letter offering a substantial reduction on said account and the followed with a formal demand for payment to which I point you to section 2.12f of the OFT guidelines which state that you cannot attempt to recover an account once it is in dispute.

 

 

I look forward to hearing from you.

 

 

 

A.